I am a staunch defender of the First Amendment. I like many of the amendments, in fact, and have been known to defend them when given the chance. However, I do so with two caveats:
1. I defend them in their spirit, not always in their strict construction, but also in their explicit wording and not in a later presumption of meaning
2. I defend them in a context of evolving legal thought, not in a way limited by their wording or historical origin
I'm sorry if that doesn't sound like a free and easy, unqualified defense but it allows me a measured view of things. It allows me the leeway to criticize and condemn due to logic without running afoul of strict constructionist thinking, but it allows me to understand the precise language and not get lost in the theory.
So when it comes to the recent flap over the "opera" The Death Of Klinghoffer, I worked hard to develop a nuanced reading of the situation. The piece, written in 1991 about the Achille Lauro hijacking and the subsequent murder of Leon Klinghoffer, is being produced at the Met in NYC and there has been a public backlash, an outcry from those who feel that the piece should not be produced.
What I present now is a series of statements which, I feel, summarize my position on the matter. By presenting them here, I remove the need for anyone to tip-toe around the issue when having me over for drinks and small talk.
Point the first: Just because you can doesn't mean you should. That's the Frankenstein argument. Sure, you can create life in a lab, but does that make it an obligation? The Met and its creative directors don't need to put on a controversial piece simply because they can. The balance between curiosity/investigation and sensitivity is maintained when the canon of journalistic ethics drives media sources not to print a rape victim's name. They CAN legally, but that doesn't mean that they feel they must. You CAN tell the story of a monster and paint him as a victim, but that doesn't mean you have to.
Point the second: Just because it is a right doesn't mean that doing it IS right. We have a moral compass which supplements our legal guides. This doesn't mean that the text is inherently "evil" or "bad" but that it bespeaks a particular political and moral approach and defends that position and anyone who produces it is giving voice to that position (and thereby, to some degree, condoning it). Not all voices deserve a place in the public sphere, especially not without rebuttal or qualification.
Three: The constitution puts a limit on what the government can suppress in terms of speech. There is nothing in it which forbids private agencies from deciding what they will and won't present to the public. Any radio station, public or private, can choose not to play a song if the program director doesn't think it fits. No one is required to play/produce/print everything that comes to his hands. This isn't censorship. This is simply being selective.
Three-A: The right to free speech is not absolute. There are topics subject to prior restraint. I'm not saying that the content here falls under any of those headings, but the legal system has already decided that the government CAN "censor" certain messages. Once the notion of absolute protection fails even at the hands of the government, then it becomes obvious that other agencies have the right to do the same. And, by the way, the right to protest has the same protection and should be (by those who defend the opera's existence) be as valued and cherished, not condemned as a suppression of the freedom to express. Defenders of the play should be defenders of the protests and even the interruptions of the play (aren't they also valid expressions? Why not?)
Four: Unless you think that an opera which makes James Earl Ray, Sirhan Sirhan, Hitler and the 9/11 terrorists all appear to be sympathetic is appropriate, don't selectively decide that one which recontextualizes the murder of a Jewish civilian is a fair expression and a story which deserves to be told. Pick any evil which has befallen you or your family and think how you would feel to see people hearing that evil's side of the story and its laying of equal blame on you and yours. Do we want to hear a rapist get to tell his sad story of how "she was asking for it?" Do child abusers get to have a play which explores why their expression of violence is actually a sane and rational behavior in the light of what they believe?
Does any of this mean that I applaud the work of Maplethorpe who trampled on the sensitivities of the church? No, but I see a decided difference between the criticism of an institution (religion) and the creation of moral equivalency between a man who was shot and pushed overboard (and who represented no particular system) and those who shot him claiming their act was political expression and criticism. They simply are not the same. Would those who defend Maplethorpe defend a complex and subtle analysis which allows a priest to explain why raping tens of altar boys was a valid political statement? Or the musical about the church as an institution defending moving said priests around and not telling parents because the children affected represented a cardinal sin and the priests were justified in their behavior? I'm sure that the Nazis who killed Anne Frank saw the Jewish people as the problem. I can't wait for the musical which tells their story.
Not all simple parallels are truly parallel and not all cases are identical. Not all voices need to be displayed and not all positions automatically earn a place in the public mindset.